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View Diary: KosAbility: The Last Battlefield for Civil Rights (133 comments)

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  •  I think I should note (4+ / 0-)

    that the ADA Amendments Act has expressly repudiated the Supreme Court's decisions limiting the definition of disability. Sutton and Williams are no longer good law; the statute now says that disabilities must be considered in their unmitigated state.

    That said, what's bothered me most about the Supreme Court's rulings is not so much their direction as their unanimity. Unlike so many civil rights rulings which had a distinct ideological split, the Supreme Court's rulings limiting the ADA have been, for the most part, 9-0 decisions. I think it speaks to some perception on the judiciary's part that the ADA is not a civil rights law but some kind of "special treatment."

    The end result is that it's up to Congress to put down in detail what disability rights statutes mean; Congress has been consistently ahead of the courts on this.

    •  Clarification: (5+ / 0-)

      I mean to say that the employment rights fact sheet linked in the diary is badly out of date, and probably at least 9 years out of date considering that it refers to Echazabal as recent.

      For a better picture of the state of things today, look up the ADA Amendments Act of 2008, which broadened the definition of disability, so that courts wouldn't focus so much on whether someone was disabled under the definition in the statute. It is true that, prior to 2008, over 90% of disability discrimination plaintiffs lost because they were found not to be "disabled," but that should no longer be the case.

    •  A legislative solution is about the only course (4+ / 0-)

      left now. I don't understand what the big issue here is...I really don't. The justices seem to have some difficulty in understanding the broad definition of disability.

      •  There's another possibility (2+ / 0-)

        that plaintiffs' lawyers have, for some reason or another, generally ignored in disability discrimination cases: common-law tort and contract claims. This is especially surprising because race and sex discrimination lawsuits are often combined with tort claims.

        For those interested in the legal side of disability advocacy, Prof. Mark Weber of DePaul University has a forthcoming paper proposing just such an approach. My own law review article (in progress) is going to draw on that but focus on applying tort claims to mental disability discrimination in particular.

        •  As you mentioned your law review.... (2+ / 0-)
          Recommended by:
          KelleyRN2, DrPlacebo

          I wondered if you'd like to share some insight on the rulings regarding payment of lawyer fees---Among my friends at Advocacy Inc., there is a real concern about what will come of the ruling that relieves a losing defendant of  paying the plaintiff's lawyer fees. The general consensus is that this ruling will curtail attorneys from taking disability related law suits.

          Bear in mind I am a lay person...I rely on simplified explanations to help me understand the intent of the court's rulings!

          •  I believe the case you're referring to (2+ / 0-)

            is Buckhannon Bd. & Care Home, Inc. v. W.V. Dept. of Health & Human Res., 532 U.S. 598 (2001).

            Buckhannon does not relieve defendants of the obligation to pay the plaintiff's fees if the defendants lose in court. What Buckhannon says is that there must be a  "material alteration of the legal relationship of the parties" in order for the plaintiff to receive legal fees.

            Where a plaintiff prevails in court or reaches a legally binding settlement, the legal fees are awarded as per statute. However, what Buckhannon allows defendants to do is avoid paying fees by "voluntarily" ending a discriminatory practice or providing accommodations and thus making the lawsuit moot, before the court gets around to actually requiring them to do so.

            The reason this is so nasty is twofold. First, institutions can save money by simply refusing to provide disability accommodations until they are actually sued, and grant the accommodations the moment they know of a lawsuit in the works. They spend no more money than they would have been obligated to spend, because they aren't spending anything on legal fees, and also get to delay any spending until a suit gets filed. Second, because that kind of practice can effectively deny plaintiffs legal fees, plaintiffs are forced to spend money to enforce rights that the ADA supposedly grants them.

            Buckhannon also contributes to the negative public perception of the ADA by encouraging abusive litigation practices by plaintiffs' attorneys. Specifically, in order to win legal fees from the defendant, plaintiffs' attorneys have to focus almost exclusively on cases in which a defendant is unable to change its employment practices (for disparate impact discrimination suits) or begin accommodating a disability (for accommodation suits) on short notice; in practice this means focusing almost exclusively on accommodations that require extensive physical alteration to the premises. On top of that, plaintiffs' attorneys file lawsuits without notice, so that defendants don't have time to voluntarily make changes before trial. Under these circumstances, negotiating a settlement out of court, which is usually the preferred outcome for all parties, becomes virtually impossible.

            Between Buckhannon and the lack of compensatory damages in "unintentional" discrimination cases, I think everyone loses out: whole categories of disability discrimination become de facto permitted because no one can afford to sue over them, and businesses end up facing abusive litigation practices in the lawsuits that do end up being filed. Both of those problems would be solved by improving the remedies available to plaintiffs.

            Buckhannon was a 5-4 decision, with the five conservative justices apparently voting to protect businesses, but I think it was shortsighted on the part of the conservative justices. I wouldn't be surprised if it's ended up costing businesses more money in litigation expenses than it's saved them.

            Most of this argument isn't actually mine; refer to Samuel Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of "Abusive" ADA Litigation, 54 UCLA L. Rev. 1 (2006).

            •  Thank you.... (1+ / 0-)
              Recommended by:
              DrPlacebo

              Now it makes more sense. Misinformation about ADA cases is so frustrating. While documentation is available it's not always easily understood by lay persons. What's more it's fodder for rumors or interpretations falling far from the actual intent. I appreciate your taking time to answer my question. Thanks again!

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